35 At [147]–[166], the primary judge considered submissions made by the Attorney-General about the policies and procedures applicable to Cabinet documents, in particular those set out in the Cabinet Handbook, 15th edition, 2022 (the Cabinet Handbook), published by the Department of Prime Minister and Cabinet. In summary, the primary judge held that the Attorney-General's submissions about Cabinet documents did not support any different conclusion on the proper construction of the FOI Act: Reasons, [165]–[166].
36 At [167]–[178] of the Reasons, the primary judge applied the earlier reasoning to the grounds of appeal. In summary, the primary judge held that ground 1(a) was made out; that it was not necessary to decide ground 1(b); and that ground 2 was made out (as a consequence of the reasoning in relation to ground 1(a)).
The appeal
37 The Attorney-General appeals from the judgment of the primary judge. The Attorney-General's amended notice of appeal contains three grounds:
1. The primary Judge erred in finding that the time for determining whether a document is an "official document of a Minister" is only at the time that a request for that document is received, pursuant to s 15(2) of the Freedom of Information Act 1982 (Cth) (FOI Act), and by reference to the facts and circumstances existing at that time (J [99]).
Particulars
- a. Contrary to her Honour's conclusion, it is also necessary to determine whether a document is an "official document of a Minister" at the time of the decision on the FOI request, including a decision on review, and on the basis of the state of affairs existing at that time, because the FOI Act does not intend or require a Minister, such as the Appellant, to provide access to documents that are not in his or her possession at that time (cf J [100]).
- b. Contrary to her Honour's approach, the FOI Act operates in the context of a broader legislative regime concerning the manner in which documents of former Ministers are to be dealt with and handled, including the Archives Act 1983 (Cth) (Archives Act), and the FOI Act must be construed in that context (cf J [98]).
- c. Contrary to her Honour's conclusion, no temporal limitation arises by implication from ss 11, 11A(3) and 15(1) of the FOI Act, either individually or together (cf J [84]), and no implication arises from s 24A(1)(b)(ii) of the FOI Act, which has a different field of operation (cf. J [90]; J [176]).
- d. In the alternative, a document "does not exist" within s 24A(1)(b)(ii) of the FOI Act if it is not in the possession of the relevant Minister or agency, taking account of any change of circumstances between the time of the FOI request up to the time of the decision on the FOI
